The limits of the right to honor
A new judgment by the European Court of Human Rights finds Spain liable of breaching the fundamental right to freedom of expression of a well-known Spanish journalist. The journalist had made a series of comments about a Spanish politician in his radio program that amounted to the offence of proffering serious insults.
The judgment by the European Court of Human Rights (“ECHR”) of June 14, 2016, has held in appeal no. 53421/10 “Jiménez Losantos v. Spain”, that the fundamental right of freedom of expression set forth in article 10 of the European Convention on Human Rights has been violated. Said violation follows from the conviction imposed on the controversial journalist due to the cumulative offence of broadcasting serious insults as a result of comments made on his radio program from June to November 2006 against the former mayor of Madrid.
A lengthy legal proceeding until reaching Strasbourg
The case analyzed by the ECHR started with certain statements made by the former mayor of Madrid in June 2006 regarding the political situation at the time, calling for moderation and for “new proposals for the future”.
Over the next few days the journalist reacted heatedly to these statements, accusing the mayor of trying to hide or forget the Madrid terrorist attacks of March 11, 2004 (“11-M”) and of being a “traitor”. The former mayor lodged a complaint against the journalist, who far from letting up, continued to criticize him, adding to the previous accusations, that he had spent taxpayers’ money in filing the complaint. In order to better understand the background of the case, we reproduce the statements made by the journalist below:
“You are disloyal, you are a traitor”.
“What you are saying mayor, you G., is that you don’t care that 200 people have died, 1500 have been injured and that a ruthless attack has been made to oust your party from government, you don’t care just as long as you get into power.”
“He doesn’t lie more than he already does because he doesn’t have time.”
“You’ve said that not even 11-M should be investigated!”
“because he’s a fake, a miserable fake”.
“That is why it’s so important for G. to try to cover up that miserable, abject, illegal and immoral mechanism of hiding the massacre, of not investigating the massacre of letting the perpetrators off scot-free”.
“He looks like a pissed off African every day”.
“As a Polanco supporter, you have nothing to do with the Popular Party, you’re a hindrance, you’re a scourge, you’re not a mayor, you’re an obstacle in finding out about 11-M”.
The complaint led to a finding of liability on June 11 2008 on the grounds of a cumulative offence of broadcasting serious insults (arts. 208, 209 and 211 of the Criminal Code). The defendant was ordered to pay a fine of 100 euros per day for one year, due to the attribution of false facts and “repeated insults and seriously offensive personal attacks”.
Mr. Jiménez Losantos filed an appeal against the judgment at the Madrid Provincial Appellate Court, which was dismissed on May 14, 2009 following the court’s ruling to uphold the previous judgment in its entirety. However, he continued to fight the case in court and filed an appeal for protection of constitutional rights which was not admitted for consideration by the Constitutional Court in March 2010.
The failure to admit this appeal created the opportunity to take the case to the European Court, on the grounds that the conviction and subsequent confirmation constituted a violation of the journalist’s fundamental right to freedom of expression.
This consequently led to the analysis of the always thorny issue of the limits of such an important right in a democratic society, as is freedom of expression, when it comes into conflict with other equally important rights, such as the right to honor of the individual affected by the presenter’s statements.
What has the ECHR decided?
Freedom of expression vs. Right to Honor
Freedom of expression is not an absolute right. Indeed, article 10 of the European Convention on Human Rights submits it to certain restrictions which are necessary in a democratic society, with the legitimate aim of protecting the reputation or rights of others.
The offence of criminal insults as “actions or expressions that injure the dignity of another person, damaging their reputation or eroding their self-esteem” constitutes a limitation to freedom of expression as envisaged in the Criminal Code. In a democratic society, the existence of such an offence is necessary in order to protect a legitimate fundamental right: the right to honor.
When balancing both these fundamental rights, the Court took into account the context in which the statements were made. The Court indicated that since the politician was a public figure and the criticism involved a matter of topical interest, the need to impose a fine had to be restricted.
The journalist’s statements, which in Spain were classified as “inferential” (attribution of false facts) and “imprecations” (consisting of insults and slurs) are, in the eyes of the court, political criticism based on the mayor’s own statements. As such, the court considers that whether they can be classified as true or false is unimportant since they are simply the presenter’s personal opinion:
“47. (…) the serious expressions used by the appellant regarding R.G.—which are criticizable from the standpoint of professional journalism—cannot be viewed by the court as deliberately false accusations, but rather as the exercise of journalistic freedom which also includes resorting to a certain measure of exaggeration or provocation”.
The court holds that certain statements could be deemed serious or provocative, but that their use can be considered to be covered by the “reinforced” freedom of expression enjoyed by journalists:
“50. However the use of certain expression that are truly aimed at arousing the public’s attention should not be a problem following case law by the court (Flinkkilä and others v. Finland, no. 25576/04, § 74, April 6, 2010, and Pipi v. Turkey, no. 4020/03, May 15, 2009). The use of vulgar phrases in itself is not decisive in the assessment of an offensive expression. For the Court, the style constitutes part of the communication as the form of expression and is, as such, protected together with the content of the expression (Uj v. Hungary, no. 23954/10, § 20, July 19, 2011)”.
Finally, regarding the fine, the Court considered the amount, €36,500, clearly disproportionate in view of the circumstances of the case and given that it could deter the full exercise of freedom of expression in a journalistic context.
Dissenting opinion: “lying is not debating”
Not all of the judges deemed a fundamental right to have been breached. The Spanish judge gave a dissenting opinion, indicating that attributing false facts to a person cannot be justified on the grounds that such allegations form part of a debate of public interest.
Relying on prior case law (Radio France and others v. France, no. 53984/00), the judge held that the court should have validated the reasons of the Spanish courts that justified the conviction:
“(…) bearing in mind the extreme seriousness of the inaccurate facts attributed and the dissemination of the message in question on several occasions, the journalist should have “been as rigorous and restrained as possible (…) especially given that (…) his program was broadcast on a radio station with national coverage”. In this regard, the court has mentioned that freedom of expression involves duties and responsibilities and that the guarantee that article 10 of the Convention offers journalists “is conditional on the interested parties acting in good faith, compiling accurate, credible information in respect of professional journalism”.
Finally, the judge held that the conviction was fully justified bearing in mind that the journalist’s words were broadcast on the radio.
In this judgment the court guarantees journalists’ protection when giving their critical opinions on topical matters and figures of public interest, even if they inject large doses of exaggeration or provocation into their statements, bordering on insults. Once again the Court attaches more importance to freedom of expression than to the right to honor.
*[The judgment is written in French. All the translations of quotes from the judgment are our own]
Garrigues Intellectual Property Department